[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 29, 2005
No. 04-13036 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-80114-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RASHID HARRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 29, 2005)
Before BLACK, HULL and WILSON, Circuit Judges.
PER CURIAM:
Rashid Harris appeals his conviction and sentence for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Harris asserts
the district court erred in: (1) denying his motion to suppress evidence seized
during a lawful traffic stop, and (2) failing to suppress his post-arrest statements
because he was not properly advised of his Miranda rights and he did not
voluntarily, knowingly, or intelligently waive those rights. Harris further argues
that, in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v.
Booker, 125 S. Ct. 738 (2005), the district court erred by enhancing his sentence
based on his status as an armed career criminal and by applying the Guidelines as
mandatory. We affirm Harris’s conviction, but vacate and remand for resentencing
consistent with Booker.
I. DISCUSSION
A. Motion to Suppress Evidence
We review “a district court’s denial of a defendant’s motion to suppress
under a mixed standard of review, reviewing the district court’s findings of fact
under the clearly erroneous standard and the district court’s application of law to
those facts de novo.” United States v. Desir, 257 F.3d 1233, 1235–36 (11th Cir.
2001). The Fourth Amendment protects individuals from unreasonable searches
and seizures. A traffic stop is a seizure within the meaning of the Fourth
Amendment. Delaware v. Prouse, 99 S. Ct. 1391, 1396 (1979). Nevertheless,
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because a routine traffic stop is a limited form of seizure, it is analogous to an
investigative detention, and this Court has therefore held a traffic stop will be
governed by the standard set forth in Terry v. Ohio, 88 S. Ct. 1868 (1968). United
States v. Pruitt, 174 F.3d 1215, 1219 (11th Cir. 1999). In Terry, the Supreme
Court clarified a person is seized “whenever a police officer accosts an individual
and restrains his freedom to walk away.” 88 S. Ct. at 1877. “[T]he police may
stop and briefly detain a person to investigate a reasonable suspicion that he is
involved in criminal activity, even though probable cause is lacking.” United
States v. Williams, 876 F.2d 1521, 1523 (11th Cir. 1989).
“[T]he reasonableness of such seizures depends on a balance between the
public interest and the individual’s right to personal security free from arbitrary
interference by law officers.” United States v. Brignoni-Ponce, 95 S. Ct. 2574,
2579 (1975). The Fourth Amendment nevertheless requires a police officer “be
able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” Terry, 88 S. Ct. at
1880. When determining whether reasonable suspicion exists, the court must
review the “totality of the circumstances” of each case to ascertain whether the
detaining officer had a “particularized and objective basis” for suspecting legal
wrongdoing. United States v. Arvizu, 122 S. Ct. 744, 750 (2002). We have held
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reasonable suspicion is “considerably less than proof of wrongdoing by a
preponderance of the evidence, or even the implicit requirement of probable cause
that a fair probability that evidence of a crime will be found.” Pruitt, 174 F.3d at
1219 (internal citations omitted).
“It is well established that officers conducting a traffic stop may take such
steps as are reasonably necessary to protect their personal safety.” United States v.
Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001) (quotation marks and brackets
omitted). Therefore, the officer may conduct a protective search of the driver, the
passengers, and the passenger compartment of the vehicle. Id., see also Michigan
v. Long, 103 S. Ct. 3469, 3481 (1983). The Supreme Court in Long clarified that
in such instances, the scope of a search of a vehicle extends to “those areas to
which [the driver] would generally have immediate control, and that could contain
a weapon.” 103 S. Ct. at 3481.
An examination of the totality of the circumstances supports the conclusion
the search of the compact disc binder was reasonably necessary to protect Officer
Creelman’s safety. The record shows that Officer Creelman walked to the back of
his patrol car to retrieve a written consent form, Harris reached into the car and
grabbed the compact disc binder. Moreover, according to the officer’s testimony,
the binder was large enough to conceal a weapon and the officer was concerned
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the binder might contain a weapon. Therefore, because the search of the binder
was necessitated by reasonable concerns for officer safety, the district court did not
err in denying Harris’s motion to suppress.1
B. Motion to Suppress Statements
“Whether a person was in custody and entitled to Miranda warnings is a
mixed question of law and fact; we will review the district court’s factual findings
for clear error and its legal conclusions de novo.” United States v. McDowell, 250
F.3d 1354, 1361 (11th Cir. 2001). “When considering a ruling on a motion to
suppress, all facts are construed in a light most favorable to the successful party.”
United States v. Behety, 32 F.3d 503, 510 (11th Cir. 1994).
The Fifth Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. In
Miranda v. Arizona, the Supreme Court considered the scope of the Fifth
Amendment privilege against self-incrimination and held the government “may not
use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” 86 S. Ct.
1602, 1612 (1966). Accordingly, the Supreme Court delineated the following
1
We decline to address Harris’s arguments concerning consent because our analysis
under Terry controls.
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procedure that, although not constitutionally mandated, safeguards the right against
compelled self-incrimination. First, before a person in custody is interrogated, he
must be informed in clear and unequivocal terms of his right to remain silent.
Second, the admonition against self-incrimination must be accompanied by an
explanation that anything said can and will be used against the individual in court.
Third, the person must be clearly informed he has the right to consult with a lawyer
and to have a lawyer with him during the interrogation. Fourth, the advice of the
right to counsel must be accompanied by the explanation that, if the person is
indigent, a lawyer will be appointed to represent him. Id. at 1624–27.
Importantly, the Supreme Court has never insisted Miranda warnings be
given in the exact form described in that decision. In California v. Prysock, the
Supreme Court stated the rigidity of Miranda does not extend “to the precise
formulation of the warnings given a criminal defendant,” and “no talismanic
incantation [is] required to satisfy its strictures.” 101 S. Ct. 2806, 2809 (1981).
Therefore, the inquiry is simply whether the warnings reasonably “conveyed [to a
suspect] his rights as required by Miranda.” Id. at 2810.
As with most rights, the accused may waive the right against self-
incrimination, so long as the waiver is voluntary, knowing, and intelligent.
Miranda, 86 S. Ct. at 1612. A waiver is effective where the “totality of the
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circumstances surrounding the interrogation reveal both an uncoerced choice and
the requisite level of comprehension.” Moran v. Burbine, 106 S. Ct. 1135, 1141
(1986) (quotation omitted). A statement obtained from a defendant during
custodial interrogation is admissible only if the government carries its “heavy
burden” of establishing a defendant has executed a valid waiver of the privilege
against self-incrimination and the right to counsel. Miranda, 86 S. Ct. at 1628.
Although Harris argues the Miranda warnings he received immediately
before the taped interview were insufficient, and thus made any waiver invalid, this
argument is without merit. According to Officer Creelman’s testimony, Harris was
read his Miranda rights from a pre-printed card twice—once almost immediately
following his arrest and once at the jail while waiting in the holding cell. Although
the card was not introduced into evidence and its contents were not presented,
Officer Creelman testified he read the card directly verbatim and asked Harris after
every question, “Do you understand?” While it is true the “government’s burden
may not be met by presumptions or inferences that when police officers read to an
accused from a card they are reading Miranda warnings” that meet constitutional
standards, Moll v. United States, 413 F.2d 1233, 1238 (5th Cir. 1969),2 Harris does
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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not challenge the sufficiency of these warnings, and thus, there is no reason to
question their adequacy. Rather, Harris takes issue solely with the warnings given
immediately preceding the taped interview on the ground that Officer Creelman
failed to advise Harris of his right to counsel. A careful review of the record,
however, indicates because the initial warnings given to Harris, both at the scene of
the arrest and while he was in the holding cell, touched all of the bases required by
Miranda, the fact the final warnings were somewhat incomplete does not affect the
sufficiency of the warnings in their totality. In other words, it cannot be said that
Harris, who was read his rights in full on at least two occasions, once only 15
minutes before participating in the taped interview, was not reasonably informed of
his rights under Miranda. See Prysock, 101 S. Ct. at 2810.
Furthermore, despite Harris’s argument the magistrate erroneously relied on
a signed Miranda waiver form that did not exist in finding a valid waiver, the
record shows the Government has carried its “heavy burden” of demonstrating
waiver by showing (1) Harris received the Miranda warnings, the sufficiency of
which he does not dispute; (2) he had the capacity to understand them and in fact
understood them; and (3) he expressly waived his right to silence. Harris offered
no evidence which would tend to indicate his statements during the taped interview
were the product of intimidation or coercion. The record supports the conclusion
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Harris was aware of his rights and comprehended the consequences of abandoning
them. Most important, however, is Creelman’s testimony indicating that when
Harris was specifically asked whether he understood his rights, he responded
affirmatively and indicated he was willing to cooperate with the authorities by
making a statement. As such, the totality of the circumstances supports the
conclusion Harris’s waiver of his right against self-incrimination was voluntary,
knowing, and intelligent and was not the product of coercion or incomprehension.
C. Booker
Because Harris invoked Apprendi during his sentencing hearing, he is
entitled to preserved-error review. See United States v. Dowling, 403 F.3d 1242,
1246 (11th Cir. 2005). Where there is a timely objection, we review the sentence
de novo, but reverse only for harmful error. See United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005). We have clarified there are two types of Booker error:
(1) Sixth Amendment, or constitutional, error based upon sentencing enhancements
imposed under a mandatory Guidelines system, neither admitted by the defendant
nor submitted to a jury and proven beyond a reasonable doubt; and (2) statutory
error based upon sentencing under a mandatory Guidelines system. United States
v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir. 2005). We turn directly to statutory
error.
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Booker statutory error exists where the district court imposes a sentence
under a mandatory Guidelines system. Id. at 1330–31. The district court
sentenced Harris under a mandatory Guidelines system, thus statutory error exists.
See id. “A non-constitutional error is harmless if, viewing the proceedings in their
entirety, a court determines that the error did not affect the sentence, or had but a
very slight effect. If one can say with fair assurance . . . that the sentence was not
substantially swayed by the error, the sentence is due to be affirmed even though
there was error.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005)
(internal quotations marks and brackets omitted). The Government has the burden
of showing the error was harmless. Id.
Although the Government argues Harris suffered no harm, there is nothing
in the record to suggest the district court would have imposed the same sentence
had the Guidelines been applied in an advisory fashion. Therefore, we cannot “say
with fair assurance that the sentence was not substantially swayed by the error.”
See id. The Government is unable to carry its burden of demonstrating a
mandatory application of the Guidelines resulted in harmless error. See id.
II. CONCLUSION
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As to the denial of Harris’s motion to suppress evidence, a review of the
totality of the circumstances surrounding the traffic stop supports the conclusion
the search of the compact disc binder was reasonable and did not offend the
standard set forth in Terry. As to the denial of Harris’s motion to suppress post-
arrest statements, the record indicates Harris was properly advised of, and
subsequently waived, his rights under Miranda. With respect to Harris’s sentence,
we vacate and remand for resentencing consistent with Booker because the district
court’s mandatory application of the Guidelines amounted to harmful error. We
note the district court correctly calculated Harris’s Guidelines range of 180 to 210
months’ imprisonment. See United States v. Crawford, 407 F.3d 1174, 1178–79
(11th Cir. 2005) (stating after Booker, district courts must consult the Guidelines
and “[t]his consultation requirement, at a minimum, obliges the district court to
calculate correctly the sentencing range prescribed by the Guidelines”). Thus, on
remand the district court is required to sentence Harris according to Booker,
considering the Guidelines advisory range of 180 to 210 months’ imprisonment
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and “other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).”
Booker, 125 S. Ct. at 757.3
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
3
We do not mean to suggest by our holding that the district court must impose any
particular sentence on remand. Rather, we merely hold the Government did not meet its burden
of showing the Booker statutory error was harmless. We also do not attempt to decide now
whether a particular sentence might be reasonable in this case.
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